In this blog post, I want to dig into a common misconception about trademarks that is very common among creative business owners
A TRADEMARK IS NOT CREATED BY A TRADEMARK REGISTRATION!
When you apply for a federal trademark application, you’re asking the federal trademark office to RECOGNIZE your trademark at the federal level. The trademark, however, technically exists prior to and without a registration.
This means 3 very important things:
#1 You have a trademark (and trademark rights) without a registration in place.
Yes, those rights are limited, and it’s best to get a registration in place quickly to strengthen your rights, but you may already HAVE a trademark (or more than one).
#2 Someone else might have a similar (or same) trademark in place without a registration.
This is what a lot of people don’t understand. You might have done your research on the USPTO database and not found any similar marks. THAT DOES NOT MEAN YOU’RE NOT INFRINGING.
While it may not be likely, it is absolutely possible that there’s another business out there with a similar (or same) name that hasn’t applied for a trademark registration yet.
Yes, the first to file for a trademark registration may have an easier and more cost-effective case for being the first and true trademark owner. But if another business has used the trademark (in similar way) — whether or not they’ve registered the trademark — their trademark rights precede yours. If you knew of such a business that used your trademark before your and you tried to beat them to submit an application, that’s illegal.
#3 Registrations are helpful because they are really good evidence of first use.
If you don’t timely register your trademarks, then you’re putting your business at risk of another business registering for one before you. And even though you might be right — even if you were the first to use it — proving that to the trademark office and trial courts are expensive and time consuming.
So what does this mean for you? Let me break it down:
- Do a comprehensive trademark search – beyond just the trademark office database — to make sure you’re the first one to be using your trademark or anything similar.
- Respect first users of the trademark, if there are any. (If so, it’s probably time for a rebrand.)
- Register your trademark at the federal level as quickly as you can in order to proactively protect your brand.
I can help give you peace of mind on these issues. If you’re serious about protecting your brand, let’s grab a call. https://indielaw.com/discovery/